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Hksar v Fong King Choi

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date23 July 2019
Neutral Citation[2019] HKCA 776
Year2019
Judgement NumberCACC319/2018
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC319B/2018 HKSAR v. FONG KING CHOI

CACC 319/2018

[2019] HKCA 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 319 OF 2018

(ON APPEAL FROM DCCC NO 90 OF 2018)

_________________

HKSAR Respondent
v
FONG King-choi (方琼財) Appellant

_________________

Before: Hon Macrae VP and Zervos JA in Court

Date of Hearing: 10 July 2019

Date of Judgment: 10 July 2019

Date of Reasons for Judgment: 23 July 2019

__________________________________

R E A S O N S F O R J U D G M E N T

__________________________________

Hon Zervos JA (giving the Judgment of the Court):

1. The appellant, with leave of the Court, appealed against his sentence of 20 months’ imprisonment following his plea of guilty to a charge of blackmail, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210, which had been imposed on him by District Judge E Yip (the judge) on 9 October 2018.

2. At the hearing of the appeal, we allowed the appeal and set aside the appellant’s sentence of 20 months’ imprisonment and substituted it with one of 14 months’ imprisonment. We said we would hand down our reasons in due course, and this we now do.

The brief facts

3. The facts as outlined to the judge and admitted to by the appellant were as follows. In the early morning of 30 October 2017, at about 6:19 am, the appellant entered a 7-Eleven store in Mongkok, claiming repeatedly to a female member of staff that he was collecting protection money, while also thumping his hand on the cashier table. The female store manager came forward and confronted him, but he kept on repeating his demand for protection money. She asked him the purpose of the protection money. He said that he was from the region and was there to collect protection money. He asked her if she would give him $100 but she responded that she was not in charge. He then pointed at her, and asked her rhetorically whether that meant she was not paying. He subsequently left the store and started to shout and kick things on the street outside. He then returned, swearing and threatening the store manager, by saying that if she called the police, he would come back on another occasion. During this time, there were customers present in the store.

4. At about 6:21 am, he took two cans of beer and brought them down hard on the cashier table, swearing at the store manager and saying he was “tor-tei” (the local bully). As he was about to walk out of the store, the store manager insisted that he had to pay for the beer. He put $20 on a shelf and walked out of the store, shouting and swearing at the store manager. The actual cost of the two cans of beer was $12.90. He remained outside the store, shouting abusive comments at the store manager. At one stage, he claimed that he would bring his friends to the store, but the store manager and her staff ignored him as he walked off at about 6:25 am and loitered outside the store.

5. At about 6:28 am, the appellant was intercepted and arrested by the police. The whole incident was captured on the store’s CCTV camera.

6. It was accepted that the appellant was intoxicated and boorish throughout this incident.

The appellant’s mitigation

7. Mr Summly S Lee, who represents the appellant in this appeal, also represented him in the court below. In mitigation, he noted that the appellant was 36 years of age and resided with his parents. He explained that he had consumed a lot of alcohol prior to the incident because he was upset with his girlfriend. He highlighted the following aspects of the case. The appellant acted alone. There was no actual violence or threat of violence, or damage to property. The demand for money was a one-off incident and only involved a small sum ($100). Despite declaring himself as “tor-tei”, he made no mention of any triad affiliation. He noted that the appellant had prior criminal convictions, none of which included blackmail. For those offences, he had either received a probation order or a fine, although there was one occasion when he was sentenced to attend a Drug Addiction Treatment Centre for possession of a dangerous drug.

8. Mr Lee submitted to the judge the case of HKSAR v Wong Yin Chak,[1] where the Court of Appeal indicated that a starting point of 3 years’ imprisonment was appropriate for a case of blackmail that fell in the lower category of offending. He compared the facts of that case with those of the present case and submitted that the facts of the former were more serious. He invited the judge to adopt a starting point lower than 3 years’ imprisonment.

The reasons for sentence

9. In sentencing the appellant, the judge noted that the appellant had only visited the store on a single day, and that the incident involved a demand for a one-off payment of a small sum of money. He agreed that Wong Yin Chak was a more serious case of blackmail.

10. It would appear that the judge treated Wong Yin Chak as setting a sentencing guideline of 3 years’ imprisonment after trial for cases of this type where there are no aggravating features. This is apparent from the judge’s following remarks:

“The Court of Appeal regarded an overall starting point of 3 years appropriate. It commented that the usual starting point of 3 years would be called for where no aggravating features such as triad affiliation, violence, or demand for regular payment or of large amount, were present.”[2]

11. Relying on Wong Yin Chak, the judge adopted a starting point of 2 years and 6 months’ imprisonment in the present case which he reduced by one third for the appellant’s guilty plea to 20 months’ imprisonment.

The appellant’s submission

12. The sole ground of appeal is that the judge erred in treating 3 years’ imprisonment as the overall and usual starting point for a blackmail case with no aggravating factors, and adopting a starting point of 2 years and 6 months’ imprisonment in the circumstances of the present case.

13. Mr Lee submitted that there was no sentencing guideline for the offence of blackmail, and that the present case fell into the lower category of offending for this offence. He contended that this was not a serious case of blackmail and did not have any of the aggravating features that are usually present in such cases. He repeated the matters raised in mitigation on behalf of the appellant, and submitted that for these reasons the starting point was manifestly excessive and wrong in principle.

The respondent’s submission

14. Mr Derek Lau, for the respondent, submitted that the judge did not treat the case of Wong Yin Chak as providing a sentencing guideline for the offence of blackmail. However, it would seem that the judge did rely on this case as providing a measure for the starting point to be adopted in the present case, even though it was expressly noted by the Court in Wong Yin Chak that there were no guidelines laid down for this type of offence.[3]

15. After a review of a number of blackmail sentencing cases,[4] Mr Lau identified factors that are usually present in blackmail cases, such as the nature and amounts of the demand, and the nature and circumstances in and by which it was made that would have a bearing on the gravity of the offence and the appropriate starting point.

16. Mr Lau acknowledged that the present case was less serious than other cases of a similar nature because the appellant acted alone, the demand was one-off, the amount involved was small, and the store did not suffer any loss or damage to its property. However, he pointed out that the present...

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